Scholars, authors and publishers go to court to fight the Bush administration's efforts to keep key presidential papers under lock and key.

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April 10, 2002 10:45PM (UTC)

One legacy of Richard Nixon's troubled presidency is the restriction of the power of the executive branch, and perhaps no power was restricted more than a former president's claim to his papers -- what he has the right to keep secret vs. what the public has a right to know. After Nixon left office and tried to maintain control of his papers -- along with his infamous tapes -- Congress eventually set limits to executive privilege by passing the Presidential Records Act (PRA) in 1978, which legally established that the papers of an outgoing president were public property. Instead of presidents deciding what should be released, the PRA set specific release guidelines and entrusted the papers to federal archivists, assuring that historians and researchers have access to source materials without the vanity and prejudices of the former president impeding the process.

It was supposed to be the final word on the subject, but an executive order by President George W. Bush that modifies the PRA has brought forth a lawsuit and the anger of the historians and writers who use the documents for their work.

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E. O. 13233 has also drawn the ire of Congress, where both Democrats and Republicans resent this re-expansion of executive power. In fact, Representative Stephen Horn (R-CA) plans to unveil a new bill that would nullify E. O. 13233 at an April 11 hearing of the House Committee on Government Reform. The bill is supported by members from both sides of the isle, including Henry Waxman (D-CA), Dan Burton (R-IN), and Barney Frank (D-MA).

On Jan. 20, 2001, former President Ronald Reagan's papers were to be the first complete set of publicly available documents about the workings of a presidential administration released under the PRA. But shortly after taking office, the newly elected Bush administration delayed the release in order to "review" the issue. The release was delayed two additional times over a number of months and then on Nov. 1, 2001, Bush signed Executive Order 13233, which effectively takes control of the papers away from archivists and returns it to the incumbent and former presidents. It also allows for the family or designated representatives of a former president to restrict the release of his records and extends the same executive privilege to vice presidents to control their own records.

"It's appalling and clearly destructive to writing history responsibly," said Stanley Katz, professor of public and international affairs at the Woodrow Wilson School at Princeton and former president of the American Council of Learned Societies. "You simply can't write an accurate picture of what happened without all the information. It's a deliberate attempt to reverse and restore the conditions of secrecy. They don't have the right to rethink what Congress thought."

A deluge of writers, historians, researchers and journalists have spoken out about E.O. 13233, claiming that the consequences of the order would ultimately retard the public's access to information and prevent the free flow of information that is the cornerstone of a functioning democracy. Even former President Bill Clinton has said that Bush's executive order is not needed, stating that there are already enough safeguards in the PRA to protect the executive privilege of outgoing presidents.

"The PRA established once and for all that the records of the people's government belong to the people," said Steven Hensen, director of planning and project development at Duke University's Rare Book, Manuscript and Special Collections Library and president of the Society of American Archivists (SAA). "Giving control of the release to the president or family designated heirs is simply outrageous. It suggests that the information about the people's government is being controlled by others who have every interest except the people's best interest."

After passing E.O. 13233, the White House explained that they were merely establishing "policies and procedures," as the title of the order, "Further Implementation of the Presidential Records Act," attests. At a White House briefing, President Bush said, "There are some documents that are privileged and protected, and this is just to make sure those documents remain protected and privileged," further adding that "it is a process that I think will enable historians to do their job, and at the same time protect state secrets."

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It was a sentiment that few historians agreed with.

"The Bush order is a serious threat to access to presidential records, it will clearly impede the writing of future presidential history," said Scott Nelson. Nelson has studied the issue of presidential papers for years, having spent the first part of his law career as a partner at a Washington firm that worked for former President Richard Nixon, trying to help him protect the information on his Oval Office tapes.

Now Nelson works for the other side, as an attorney for the legal unit of Public Citizen, a public interest watchdog group that along with the American Historical Association, the National Security Archive, the Organization of American Historians and a number of prominent historians is suing the National Archives and Records Administration (NARA) to follow the PRA regardless of Bush's order.

The suit focused on 68,000 Reagan documents that were requested by historians but were held up by the Bush administration since their January 2001 release date. All but 150 pages were finally released by the NARA on March 15, 2002, after being cleared under the new executive order, but the suit is still going forward to overturn Bush's order from affecting future presidential records.

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Congress passed the PRA because until the 1970s a president's papers were considered his own property. This led to abuses of stewardship and the destruction of historical records. The most notorious case involved Warren G. Harding, whose wife destroyed up to half of her late husband's presidential papers -- especially those relating to the Teapot Dome scandal, which led to the first imprisonment of a former Cabinet minister -- claiming that she was protecting her husband's memory.

But this was by no means a solitary episode -- an amicus brief filed by the Association of American Publishers and other groups on behalf of the plaintiffs in the E.O. 13233 lawsuit states that many of the papers from Presidents Van Buren, Harrison, Grant, Harding, Coolidge and others were also destroyed. Theodore Roosevelt was the first president to donate his presidential papers to the public. With the establishment of the Presidential Libraries Act in 1955, presidents from Hoover to George Bush Sr. bequeathed their papers to their individual libraries, which are run by professional archivists, though such donations were still considered to be done on a voluntary basis.

Under the PRA, the papers of an outgoing administration are transferred to the NARA, a nonpartisan federal agency whose archivists act as custodians for the papers. Presidential papers, which are not subject to Freedom of Information Act (FOIA) requests during a president's term, are additionally withheld for another five years after the president leaves office while the archivists prepare their release. At the end of that five-year period, the papers are then public information, unless the former president declares certain information to belong to specific categories, such as national security information and confidential communications for advice between the president and his advisors. In that case, the papers are delayed for release for 12 years, after which time they are also public information.

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The Bush order, though, added a number of new stipulations and procedures. Archivists must now notify both former and incumbent presidents when they receive any requests to examine the records, and both are allowed to scrutinize the order and decide whether to claim executive privilege. Also, the requester must show a "designated, specific need" in order to overcome presidential privilege. Not only that, the archivist has to abide by the decision, whether or not it has any legal or constitutional merit. In addition, upon the death or disability of a former president, a designated family member or representative is allowed to make such decisions. The order also extends executive privilege to the papers of vice presidents, which was never in the PRA.

Critics denounce the Bush move as another example of the administration's obsession with secrecy, following other attempts to curtail records such as an Oct. 12, 2001, memorandum by Attorney General John Ashcroft urging government agencies to legally resist FOIA requests whenever possible. Not only that, but President Bush is already embroiled in another case involving his own papers from when he was governor of Texas; after his term he deposited those papers in his father's presidential library, where under federal law they will be harder to access than if they were deposited in a state-run institution. The Texas attorney general is currently working on an opinion of the matter.

The Bush order was also attacked as an act of political expediency, to protect the former writing of current administration officials who served in the Reagan administration, including Bush's own father, Reagan's former vice president. The papers contain memos and writings by current administration officials who served under Reagan, such as Secretary of State Colin Powell, chief of staff Andrew Card, Secretary of Defense Donald Rumsfeld and a host of others.

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"They're fearful of what they don't know and of things that might come out in the future," said Anna Nelson, a history professor at American University in Washington and a longtime spokesperson on behalf of historians' access to federal records who has done research in five presidential libraries. "In the short run, they're thinking about Bush Sr. and people in the current Bush administration, but they're not thinking ahead to the long-term problems."

One of those problems is that history itself would be incomplete. For example, the kinds of presidential source material used to write biographies like "John Adams" by David McCullough and "Theodore Rex" by Edmund Morris might not be available to biographers of more recent presidents if E.O. 13233 were to remain in effect.

"History can't be written responsibly without the entire record," said Stanley Kutler, a professor of history at the University of Wisconsin and one of the two historians whose names are on the lawsuit. In the 1970s he led litigation with Public Citizen to get access to Nixon's Oval Office tapes, the transcripts of which he later published in "Abuse of Power: The New Nixon Tapes." "To be a fair or good historian, you need the entire context."

The effect of incomplete history, said Anna Nelson, has a widespread influence. "What researchers and historians do trickles down to the media, to movies, to how news is viewed and analyzed," she said. "We lose our sense of an entire decade. We need more of a sense of history, not less. Many of the policy matters made back then we're still living with now. A healthy democracy requires open government." On a more practical note, she pointed out that people training to make policy and other governmental decisions in the future get many of their ideas from history sources, and therefore an incomplete record hampers how effective they would be in the future.

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Although Bush initially claimed that E.O. 13233 was issued to protect national security, in fact the 68,000 papers withheld do not involve national security but entail another of the PRA exemptions: the correspondence between a president and his advisors. The Bush administration claimed that by forcing the early release of such information, it would inhibit free speech between a president and his advisors.

Anna Nelson pointed out that presidential advisors have already known for a long time that their correspondence with a president will be public and that it has not impeded the flow of ideas. "Not only that," she said, "people making policy, they're too busy and don't have time to consider what they've been writing down. That it would have a chilling effect on correspondence is clearly fallacious."

She also noted that the argument about giving the former presidents more power to protect their constitutional rights and assure executive privilege and that sensitive secrets don't get out is weak. "The National Archives always protected records and is very conscientious about third-party issues and embarrassments," she said. "They held onto the Nixon tapes all those years and never had a leak."

Bruce Craig, director of the National Coordinating Committee for the Promotion of History, doesn't suspect that there is any "smoking gun" among the Reagan papers. But he fears that the order might have a detrimental effect on historians writing about future presidents. "Oftentimes, the confidential advice given at the highest level is the stuff of history," he said. "What would we know about the Bay of Pigs without that information? What type of history could you write about Bush's reaction to 9/11 without access to those papers?"

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Whether the issue is decided by the lawsuit or reined in by Congress' bill, barring a summary judgment on the lawsuit, it will take months until the success or failure of these measures is seen. Until then, millions of presidential papers remain under the effect of E.O. 13233. "I just don't get it," said Hensen. "What [presidential administrations] do is at the behest of the public. This executive order reflects a more imperialistic or corporate mentality, rather than public service."

"The Nixon experience brought into focus this ordeal with presidential records," Kutler said. "The Bush order is like handing Richard Nixon a victory after 30 years, as if to say, 'You were right.' But you need access to all the information to write history well. Ultimately our history is going to be the better for it.'"